In re Dragoni, 2070

• Citation: 53 Wyo. 143,79 P.2d 465
• Decision Date: 25 May 1938
• Docket Number: 2070
• Parties: IN RE DRAGONI; v. UNION PACIFIC COAL CO., "B" MINE, SUPERIOR LOPO ET AL.
• Court: United States State Supreme Court of Wyoming

79 P.2d 465

53 Wyo. 143

IN RE DRAGONI;

LOPO ET AL. v. UNION PACIFIC COAL CO., "B" MINE, SUPERIOR

No. 2070

Supreme Court of Wyoming

May 25, 1938

APPEAL from the District Court, Sweetwater County; V. J. TIDBALL Judge.

Proceeding under the Workmen's Compensation Law by Diamondo Lopo and others, claimants, for the death of their father Constantino Dragoni, also known as Charles Dragon, employee, opposed by the Union Pacfic Coal Company, "B" Mine, Superior Wyo., employer. From an award in favor of claimants, the employer appeals.

Reversed.

For the appellant, the cause was submitted on the brief of T. S Taliaferro, Jr. and A. L. Taliaferro, of Rock Springs, and John U. Loomis of Cheyenne.

The beneficiaries of the award are non-resident alien illegitimate children. The evidence offered in support of claimants was incompetent. There was no evidence that the infants were ever members of the deceased workman's family, but there was evidence that they never occupied any family relationship with the deceased workman. The employer does not believe that these infants come within the provisions of the Wyoming Industrial Accident Insurance Law. Their legal rights should be clarified by judicial interpretation. Cuthbertson v. Union Pacific Coal Company, (Wyo.) 62 P.2d 315; State Constitution, Sec. 4, Article 10. The laws of Italy recognize divorces granted by the American Courts. Martindale-Hubbell Law Digest of Italian Laws. The Wyoming statute provides that no spouse shall be entitled to the benefit of compensation act unless he or she shall have been married to the workman at the time of the injury. Sec. 124-106-7, R. S. Compensation to a common law spouse is denied. Olson's Case, (Mass.) 142 N.E. 808. There is no conclusive presumption as to dependency. Gritta's Case, (Mass.) 127 N.E. 889; In re Cowden's Case (Mass.) 113 N.E. 1036. Family relation has been well defined by the courts. Kelley's Case, 222 Mass. 538; Newman's Case, 222 Mass. 563; Union Trust Company v. Cox (Okla.) 155 P. 210; 25 C. J. 664. It was a family group thus defined that the courts and compensation act of Wyoming had in contemplation. Lane v. Phillips (Tex.) 6 S.W. 610. The Wyoming statute does not include illegitimate children. The Wyoming Industrial Accident Insurance Act does not abandon the moral code of the common law. Section 124-120, R. S. Dependents of an injured workman are defined by Sections 124-106-7, (k) R. S. 1931. See also Broadbent's Case, (Mass.) 134 N.E. 634; Moltz v. Hansell, (Penn.) 175 A. 880; Hargrove v. Casualty Company, (Tex.) 66 S.W.2d 468; Utah Fuel v. Industrial Commission (Utah) 234 P. 699; Travelers' Ins. v. Peters (Tex.) 280 S.W. 312; 71 C. J. 543; Roberts v. Whaley (Mich.) 158 N.W. 209; Bassier v. Construction Co., (Mich.) 198 N.W. 989; Scott v. Ice Company, (Md.) 109 A. 117. An illegitimate child may of course be lawfully adopted and become a dependent. Larkhart v. Bailey Coal Co., (Ky.) 30 S.W. 956; Travelers' Ins. Co., 177 A.D. 123, 163 N.Y.S. 733. The New York statute was amended to apply to an acknowledged illegitimate child dependent upon the deceased as compensable. Offspring are defined in the following cases: Barber v. Pittsburgh R. Co., (U. S.) 41 L.Ed. 933; Giles v. Wilhoit, (Tenn.) 48 S.W. 268; Powell v. Brandon, 24 Miss. 343; Mitchell v. Pittsburg, (Penn.) 31 A. 67. Alien infants are not compensable under the Michigan statute. Westfall v. Burroughs & Son, (Mich.) 274 N.W. 358. It is clearly apparent that the authors of the Constitutional Amendment and of the Workmen's Compensation Law, enacted pursuant to such amendment, intended that the law should apply to dependents of legitimate family relationships and not to alien illegitimate children.

For the respondents, the cause was submitted upon the brief of Joseph Galicich of Rock Springs.

Appellant's purported abstract of the record fails to comply with rule 37 of this court and is also argumentative. Tibbals v. Graham (Wyo.) 61 P.2d 285; St. Claire's Estate (Wyo.) 28 P.2d 894; Lane's Estate (Wyo.) 60 P.2d 360; Simpson v. Occ. Assn. (Wyo.) 19 P.2d 958. The record shows that the deceased workman supported claimants by contributions from his earnings in the years 1932 to 1935 inclusive. The finding of the trial court that the claimants were dependents of the injured workman is one of fact, and unless there is a total absence of evidence to support the finding, it is conclusive and binding upon the appellate court. Coleman Co. v. Wicks (Ky.) 280 S.W. 936; Steel v. Griffin (Ala.) 106 So. 899; Leach v. Case Co. (S. D.) 219 N.W. 884; Weliska's Case (Me.) 131 A. 860; American Smelting v. Ind. Com. (Utah) 250 P. 651. There was evidence that the workman acknowledged the paternity of the claimants. The pertinent part of Section 124-120, R. S. 1931 as amended by Chapter 100, Laws 1935, provides compensation for dependents of injured workmen, and Section 124-107, R. S. as amended by the same chapter defines dependent families, using the term "immediate offspring," without expressly excluding illegitimate children. This court in the case of Zancanella v. Central Coal & Coke Company (Wyo.) 173 P. 981 clearly stated the purpose and intent of the Workmen's Compensation Law. See also notes in L. R. A. 1916A 124; L. R. A. 1917D 158; L. R. A. 1918F 485 and Annotated Cases 1913E 483; Schneider, Workmen's Compensation Law, 2d Ed. 1324. It is fair to assume that our legislature used the terms "child or children" or "immediate offspring" in their common and popular signification rather than with reference to any legal or technical sense. Cuthbertson vs. U. P. Coal Company, 50 Wyo. 441, 62 P.2d 311. To show that claimants are within the term "dependent families" we submit the following authorities: 71 C. J. 543 and cases cited. The following statutes have an important bearing upon the question at issue. Sections 20-401, 402, 403, 428 and 433, R. S. 1931. The word "family" may include illegitimate children. 25 C. J. 668, 3 R. C. L. 742; Roberts v. Whaley (Mich.) 158 N.W. 209; Smith v. Canadian N. R. Co., 7 West Week. Rep. (Can. ) 596; Insurance Co. v. Commission (Cal.) 202 P. 664; Moore Corp. v. Commission (Cal.) 196 P. 256; Rock Company v. Commission (Cal.) 182 P. 447; Utah Fuel Company v. Commission (Utah) 230 P. 681; Myers Company v. Noland (Ky.) 2 S.W.2d 387. It is contended that claimants were not the "dependent family" of the workman, because at the time of his death they lived in Italy. This contention is not sustained by the authorities. 25 C. J. 666; Sec. 124-106-7, R. S. 1931 as amended by Chapter 100, Laws Wyoming 1935; Western Supply Company v. Pillsbury (Cal.) 156 P. 491; Northwestern Iron Company v. Commission (Wis.) 142 N.W. 271; Zinc Company v. Commission (Colo.) 206 P. 158; Madera Company v. Industrial Accident Commission (Cal.) 208 P. 278; Miller v. Woodmen of the World (Wis.) 122 N.W. 1126; In re Derinza (Mass.) 118 N.E. 942, where the court held that the widow residing in Italy was entitled to compensation. In re Pagnoni (Mass.) 118 N.E. 948; In re McDonald (Mass.) 118 N.E. 949; In re Mooradjian (Mass.) 118 N.E. 951. The attorney general no longer represents the workman in the Supreme Court. Section 124-114, R. S. 1931.

There was also a brief filed with permission of court by Ray E. Lee, Attorney General; Thomas F. Shea, Deputy Attorney General; and William C. Snow, Assistant Attorney General, all of Cheyenne, on behalf of the State Treasurer.

We assume that if these claimants are to participate in a compensation award, it is by reason of that part of the Compensation Law, Session Laws of 1933, Chapter 129, Section 1, which reads: "In other cases questions of family dependency in whole or in part, shall be determined in accordance with the fact, as the case may be, at the time of the injury." In other words, the minor claimants in this case cannot participate in any award as "child or children," but only by reason of their being "family dependents." To adopt the definition of a family, advocated by the attorney for the claimants, is to a certain extent to let down the bars to the unconventional marriage. 19 R. C. L. Sec. 79; Schouler on Marriage, Vol. 1, Sec. 714. Illegitimate children are not favored in law and have only such rights as are expressly granted by statute. Idem Sec. 709. The conception of the word "family" in respect to illegitimate children is stated in our Law of Descent. Section 88-4005, R. S. The relation of the father is not recognized in the Descent Law unless and until the father shall have married the mother and shall have recognized the children as his own. There is never any doubt as to the identity of the mother. 7 Am. Jur. Sec. 4, p. 628. It is the policy of the law to discourage the unconventional marriage. The case of Moore Ship Building Corporation v. Industrial Accident Commission, 13 A. L. R. 676, 196 P. 257, contains in the main opinion, and in the dissenting opinion, an able presentation of the conflicting views as to the status of an illegitimate child. Under the evidence in the present case, it is not disputed that the claimants are illegitimates and that the father was never married to the mother. A dependent family means a family recognized in law. Staker v. Industrial Comm. (Ohio) 186 N.E. 616.

Joseph H. Galicich in reply to brief of State Treasurer.

The Workmen's Compensation Law is not an outgrowth of the action for death by wrongful act, but supersedes and abrogates the common law. Zancanelli v. Central Coal and Coke Company, 25 Wyo. 511, 71 C. J. 232, 527. Our Statute of Descent has no application here. LaChapelle v Union Pacific Coal Company (Wyo.) 214 P. 587; McCormick v. Central Coal & Coke Co. (Kans.) 232 P. 1071. The Attorney General's contention that it is the policy of the law to discourage the unconventional marriage and maintain the...